Senad Kocic v Deputy Commissioner of Taxation

[2012] HCASL 59

SENAD KOCIC
v
DEPUTY COMMISSIONER OF TAXATION
[2012] HCASL 59
S360/2011

1. Zumuda Pty Ltd (previously called "Civil Pacific (Traffic) Pty Ltd" and before that "Civil Pacific (Vic) Pty Ltd") failed to remit moneys owing to the respondent under its taxation obligations. The failure triggered a liability imposed on the company directors personally to pay a penalty equivalent to the non-remitted withholdings under s 222AOC of the Income Tax Assessment Act 1936 (Cth) as in force at the relevant time. Before the District Court of New South Wales, the applicant contended that he was not a director of the company at the relevant time. On 30 August 2010, Gibson DCJ found that the applicant could not establish that he was not a director at the relevant time. Judgment was entered in favour of the respondent.

2. The applicant appealed to the Court of Appeal of the Supreme Court of New South Wales.  The notice of appeal set out nine appeal grounds concerning the burden of proof, errors in finding of fact, errors in conclusions drawn and a failure to provide adequate reasons to particular items of the defence.

3. On 13 October 2011, the Court of Appeal (Beazley JA, Handley AJA, Gzell J) held that Gibson DCJ was not only entitled to make findings as she did but that the evidence supported positive findings that the applicant was a director of the company.  The appeal was dismissed with costs.

4. The application for special leave to appeal, accompanying draft notice of appeal and applicant's amended summary of argument submit that the Court of Appeal erred in failing to have proper regard to the appeal grounds before it.  The respondent submits that special leave should not be granted.

5. The applicant has not demonstrated any error of law or principle that would vitiate the findings of the Court of Appeal.  There is no other reason to doubt the correctness of the decision of the Court of Appeal.  Special leave is refused.

6. Pursuant to s 41.11.1 we direct the Registrar draw up, sign and seal an order dismissing the application with costs.

W.M.C. Gummow
29 March 2012 S.M. Kiefel